Why saying Roe v. Wade is 'settled' isn't saying much

When Sen. Susan Collins, a Republican who supports abortion rights, emerged from her office last month after...

Posted: Sep 3, 2018 2:15 PM
Updated: Sep 3, 2018 2:15 PM

When Sen. Susan Collins, a Republican who supports abortion rights, emerged from her office last month after her first meeting with Judge Brett Kavanaugh, reporters listened closely trying to divine whether she would back President Donald Trump's Supreme Court nominee.

Her vote, in a closely divided Senate, could help to determine not only Kavanaugh's fate, but the future of Roe v. Wade, the historic 1973 opinion that legalized abortion. Although the opinion was decided more than 40 years ago, it remains a lightning rod in modern confirmation hearings as senators on each side of the issue have tried to press nominees to tip their hands.

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Abortion opponents hope that Kavanaugh will provide a fifth vote on a court decision to either overturn Roe or weaken the decision. The stakes are high. Kavanaugh has never opined directly on the case, but if confirmed, he will fill the seat of Justice Anthony Kennedy, who was a key swing vote on the issue of abortion restrictions.

To reporters, Collins suggested that she thought Kavanaugh respected Roe because he told her that it was "settled law."

"He said that he agreed with what (Chief) Justice (John) Roberts said at his nomination hearing in which he said it was settled law," Collins said.

But in reality, as both sides of the issue know, using the word "settled" isn't saying much.

In fact, any potential nominee asked about almost any Supreme Court case will likely say it's "settled." What they don't usually say is that while a lower court nominee must accept Supreme Court precedent, a sitting justice does not. They can vote to unsettle it.

Earlier this year, for instance, the court overturned a 40-year-old precedent when it delivered a blow to public sector unions in striking down an Illinois law that required non-union workers to pay fees that go to collective bargaining.

In Kavanaugh's hearings that start Tuesday, Democrats want to push Kavanaugh on abortion.

"It's not enough for Brett Kavanaugh to say that Roe is 'settled law,'" Sen. Dianne Feinstein said a tweet after Collins' comments.

"Chief Justice Roberts said the same thing in 2005," the California Democrat added. "Then he voted in favor of a law that would have forced 75% of Texas clinics to close. Fool me once, shame on you. Fool me twice, shame on me."

Indeed, during his confirmation hearings Roberts, like other conservatives Samuel Alito and Neil Gorsuch, said that Roe was settled.

"It's settled as a precedent of the Court, entitled to respect," Roberts testified in 2005. But in her tweet, Feinstein referred to the fact that in 2016, Roberts dissented when the court struck down parts of a Texas law that would have shuttered all but a handful of clinics in the state.

At his confirmation hearing in 2006, Alito said that Roe had "been on the books for a long time" and had been reaffirmed by the justices. Gorsuch, Trump's first nominee to the bench, said last year that Planned Parenthood v. Casey, an opinion that reaffirmed the core holding of Roe, is "settled law."

Supporters of abortion rights suggested Collins had been snookered.

"With all due respect to Sen. Collins, 'settled law' means nothing, said Ilyse Hogue, president of NARAL Pro-Choice America. "It's a bunch of code words, long used by many conservative judges, meant to hide their real beliefs and anti-choice record."

Meanwhile, opponents of abortion are optimistic that Kavanaugh will vote in their favor. Trump, after all, promised In a 2016 CBS interview that his "judges will be pro-life."

After Collins' comments, Catherine Glenn Foster, president of Americans United for Life, a group that opposes abortion, said that Kavanaugh was "only restating the position the Supreme Court has taken in Roe."

And in an interview with CNN's Dana Bash on Sunday, Sen. Lindsay Graham, a staunchly anti-abortion Republican from South Carolina, acknowledged that saying a case is "settled" doesn't mean it can't be overturned.

"Well, here's what I hope he will do," Graham said. "If there's a case before him that challenges Roe v. Wade, that he would listen to both sides of the story, apply a test to overturn precedent," Graham said. "Precedent is important, but not inviolate," he said.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 512632

Reported Deaths: 10262
CountyCasesDeaths
Harrison34853555
DeSoto33162432
Hinds32556641
Jackson24830389
Rankin22442402
Lee16238242
Madison14874283
Jones14086247
Forrest13741259
Lauderdale12249324
Lowndes11286193
Lamar10644140
Pearl River9707244
Lafayette8827143
Hancock7835132
Washington7550169
Oktibbeha7204138
Monroe6989179
Pontotoc6970109
Warren6849178
Panola6746134
Neshoba6726210
Marshall6653141
Bolivar6440151
Union633897
Pike5924156
Alcorn5862107
Lincoln5525136
George510180
Prentiss500884
Tippah490282
Itawamba4829107
Scott477499
Adams4766125
Tate4748116
Leflore4723144
Copiah455895
Yazoo455591
Simpson4543117
Wayne442772
Covington432895
Sunflower4299106
Marion4265112
Coahoma4227109
Leake413790
Newton395581
Tishomingo381793
Grenada3775109
Stone365666
Jasper340166
Attala337790
Winston317792
Chickasaw313367
Clay311878
Clarke301195
Calhoun284449
Holmes271289
Smith268952
Yalobusha243747
Tallahatchie231453
Greene224749
Walthall221366
Lawrence217840
Perry213356
Amite209557
Webster205148
Noxubee188642
Montgomery181557
Carroll174441
Jefferson Davis173643
Tunica163239
Benton152639
Kemper144941
Choctaw136527
Claiborne134238
Humphreys131139
Franklin124929
Quitman107528
Wilkinson105939
Jefferson96834
Sharkey65121
Issaquena1957
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Alabama Coronavirus Cases

Cases: 844594

Reported Deaths: 16115
CountyCasesDeaths
Jefferson1160612006
Mobile741651379
Madison53255732
Shelby38313368
Baldwin38061589
Tuscaloosa35996641
Montgomery34473781
Lee25541263
Calhoun22582518
Morgan22441406
Etowah20009517
Marshall18771316
Houston17723425
St. Clair16863358
Limestone16123218
Cullman16032303
Elmore15902294
Lauderdale14945306
Talladega14186299
DeKalb12957269
Walker12011380
Blount10700192
Autauga10512157
Jackson10151194
Coffee9412192
Colbert9325208
Dale9013191
Tallapoosa7248201
Russell707465
Chilton7015170
Escambia6951143
Covington6926195
Franklin6337108
Chambers5778142
Marion5400130
Dallas5283209
Pike5114109
Clarke484986
Lawrence4826129
Winston4777110
Geneva4640136
Bibb434094
Barbour369180
Butler3433100
Marengo342393
Monroe336666
Randolph334067
Pickens333188
Fayette329885
Henry320566
Hale317989
Cherokee316963
Crenshaw260477
Washington256952
Cleburne254360
Lamar251253
Clay250869
Macon244764
Conecuh192762
Coosa184647
Lowndes178168
Wilcox177438
Bullock152545
Perry141840
Sumter139041
Greene130245
Choctaw93228
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